Case narrows waste transport rules, lawyers say

Clarity found on what constitutes the meaning of 'waste' in prosecution for waste transport offences, according to legal commentators

Case narrows waste transport rules, lawyers say

November 12, 2012

Two law firms have highlighted the significance of a recent waste transport judgement in the New South Wales Land and Environment Court.

In what Hunt & Hunt lawyers described as "intriguing" and those for Corrs Chambers Westgarth as "significant", the NSW Environment Protection Authority lost the case against Terrace Earthmoving on the point of what constitutes ‘waste’ in the transportation process under the Protection of the Environment Operations Act 1997 (POEO Act).

Under rules amended in 2006, the firm’s sole director, Geoffrey Page, faced increased maximum fines of $250,000 personally and $1 million for his company had guilt been found.

But a change to the definition of ‘waste’ was also made at the time.

Not at dispute was that Terrace had transported fill material from building sites to help form a road on a rural property.

Whether the fill was indeed ‘waste’ was the nub of the matter and, given that it was not a "discarded, rejected, unwanted, surplus or abandoned substance", it did not qualify.

Justice Craig also held that the Act’s qualificaton of 'waste' - "whether or not it may be reprocessed, reused, or recycled" – remained merely a qualification.

"Importantly, the court rejected the EPA’s submission that the transporting of the substance within the meaning of section 143[1] extends the the deposition of that substance at the ‘place’, that deposition being the final act of element of transportation," Corrs lawyers say.

Instead, Craig J held that, because the term ‘transport’ is not defined by the POEO Act, its ordinary meaning should be applied – ie to take or carry from one place to another.

"The court drew a distinction between the transporting of material and its deposition at the ‘place’ to which the material is transported.

"This distinction is significant in the determination as to whether the material is characterised as ‘waste’ in the transportation process."

Hunt & Hunt lawyers note that there might be an appeal but that the decision limits but gives clarity to what material constitutes waste for transport.

"As it stands, this new, restrictive interpretation has significant implications for individuals and companies working in resource recovery, earthmoving, building demolition and related industries," the firm’s lawyers say.

Corrs lawyers agree.

"The case is authority for the proposition that where an end user acquires a substance or material for a specified purpose and it is used for that purpose, the transportation of that substance or material will not constitute unlawful transportation under the POEO Act," they say.